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tv   Today in Washington  CSPAN  June 29, 2011 7:30am-9:00am EDT

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what measures does the prime minister jeff ward these -- that's the prime minister have for these, having less -- [inaudible] [shouting] >> what i would say to her constituency, i say to all pensioners is this government is reforming pensions so that we're going to be paying a more generous state retirement pension. because of the triple lock someone retiring today will be 15,000 pounds better off over the rest of their lives and they would've been under the plans we inherited. linked into that we've kept the free bus pass can we get the free television license, we've kept the other free pensioner benefits and i believe were doing fair by britain's pensioners. >> thank you, mr. speaker. the prime minister --
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[inaudible] there's a contrast. does he agree with me that we should be in the vanguard of reform in our own pension so we can look at at our constituents in the face of? >> know, i absolutely agree with you honorable lady in this house. we are public sector workers as well. we should be subject to exactly the same changes we are asking others to take on. so the increase in contribution should apply to the mp system even though it's a system where we already made him quite a lot. we are saying right across the board the increase in pension contributions is right too great a healthier long-term system. >> order. statement the foreign secretary. mr. secretary. >> here on c-span to really the british house of commons now as they move onto other legislative business. you been watching prime minister's question time and live wednesdays at 7 a.m. eastern what parliament is in session.
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>> at yesterday's hearing of the senate foreign relations committee, state department legal adviser harold koh said
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that the war powers act of 1973 does not apply to u.s. involvement in libya. and that president obama did not need congressional authority for military operations there. to senators on the committee, john kerry and john mccain, have sponsored a bill to authorize the leading nation for a year. this hearing is to ours. >> the hearing will come to order. thank you very much for being here this morning. i apologize for starting a few minutes late. we're here this morning to further examine an important since it has been passed. this isn't issue since the 1970s, and certainly it has been debated over the course of the last weeks. with respect to the war powers resolution and its role in
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america's use of force in libya. i want to thank all of my colleagues for the very constructive manner in which we have conducted that discussion over these past weeks, and this afternoon the committee will meet again, and i would ask all the members who are here as you run into other members, if we can begin that meeting punctually, i think there is a fair amount of business, it's obvious important business we want to try to consider it as expeditiously as possible. and that is was with respect to the proposed resolution regarding the limited operations in support of the nato mission in libya. it is my personal from believe that america's values and interests compelled us to join other nations in establishing the no-fly zone over libya. by keeping qadhafi's most potent weapons out of the fight, i am positively convinced, and i
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would reiterate that yesterday, two days ago when cindy mccain and i were in cairo meeting with general and how he and others, and they affirmed the conviction that the actions of the united nations with respect to the no-fly zone indeed saved many thousands of people from being massacred by gadhafi. there's no question in my mind about that. we also sent a message about something that matters to the american people, as a matter of our values. and that is about whether or not leaders should be permitted willy-nilly to turn their armies it on their own citizens, the citizens they're supposed to serve and protect. i have made clear my believe that the 60 day restriction contained in the war powers resolution does not apply in
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this situation, particularly sand cleaner the operations over to nato. but some people obviously can draw different interpretations, and will and will have a good discussion about that today. it's important in my judgment to remember that the war powers resolution was a direct reaction to particular account kind of war, particular set of events, the vietnam war, which at that time was the longest conflict in history in which we sold without any declaration of war and the loss of over 50,000 american lives, spanning three administrations. and during those three administrations, congress never declared war. or i might add authorize. they funded but there was no formal authorization. now understandably congress after that wanted to ensure that any future it would have an opportunity to assert its constitutional prerogatives, which i do agree with and do believe in.
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when america sends its soldiers abroad. but our involvement in libya is obviously clearly different from our fight in vietnam. it is a very limited operation and the war powers resolution applies to the use of armed forces in, and here i quote hostilities or situation where imminent hostilities is clearly indicated by the circumstancesi, referring to american armed forces. but for 40 years presidents havs taken the view that this language does not include every single military operation.ary presidents from both parties uve undertaken military operations without express authorizati won from congress. i will emphasize particularly for my friends that doesn't makd it right. and i'm not suggesting that it does.does. it still begs the announces each time of whether or not it fits t particular situation. certainly, panama, grenada,
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haiti, bosnia, plus a vote, lebanon -- the list is long where presidents have deemed it necessary to take a particular action. in some cases, those actions in design less than 60 days. in a number of them and in some of the most recent and prominent ones, they went well beyond 60 days. in fact, on one occasion, i believe lebanon, congress actually authorized action a year later. we have never amended the war powers resolution, and we have never amended the resolution in terms of this particular authorization that came through the united nations. the ford administration, for example, defined hostilities only as those situations where u.s. troops were exchanging
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fire with hostile forces. and subsequent administrations, republican and democrat alike, built on that interpretation. but are in libya today, no american is being shot at. no american troops are on the ground, and we're not going to put them there. it is true, of course, that the war powers resolution was not drafted with the drones in mind. as our military technology becomes more and more advanced, it may well be that the language that i just read needs further clarification. maybe it is up to us now to predefined id in the context of this more modern and changed warfare and threat. i recognize that there can be very reasonable differences of opinion on it this as it applies to libya today. so i am glad we're having this hearing. i think it is important.
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many of us have met with members of the libyan opposition. i know senators are eager to get to know them better and to learn about their plans and goals. i see that we're joined this morning by libya's ambassador to the united states, but he resigned during the uprising and is now the diplomatic representative of the transitional national council, which only recently angela merkel moved to actually recognize. like the ambassador, we would all like to see a brighter future for libya. that is why, when it comes to america's involvement, we need to look beyond the definition of hostilities and look to the bigger picture. a senate resolution authorizing the limited use of force in libya well, i think, show the world, particularly muammar gaddafi, at a time when most people make a judgment that the vice is squeezing, the
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opposition is advancing, the regime is under enormous pressure, that congress and the president are committed to this critical endeavor. the united states is always strong best when we speak with one strong voice on foreign policy. that is why i hope this afternoon we could find our way to an agreement on a bipartisan resolution. endorsing our supporting role in this conflict also sends a message to our allies and nato. secretary gates, prior to departing, made a very strong speech about nato. the need for nato to do more. the fact is, nato is doing more in this effort. and they are in the lead in this effort. we have asked, in the past, for the alliance to date -- to take the lead in the conflict. too often they have declined. in this case, they have stepped up. i believe that for us to turn on
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our own words and hopes and urg ings of the last years and pull the rug out from under them would have far-reaching consequences. with that said, i am gridley -- it is a great pleasure for me to welcome here harold koh, the state department's legal adviser. he is a distinguished scholar of constitutional law and international law. he has a long career of service in the government, as well as in academia we also have -- as well as in academia. we have some others that we asked to be here this morning, but they declined. on the second panel, we have two witnesses. mr. fisher, a scholar in residence of the constitution project. he worked at the library of congress as the senior specialist in the separation of powers, and he was a specialist in constitutional law.
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and the professor and there is from temple university, and he served in the state department and on the national security council staff. he has written extensively on foreign relations law at the united states. so we appreciate all of our witnesses taking time to be here today. senator lugar. >> thank you very much for calling this meeting. we're considering the legal and constitutional basis for ongoing united states military operations in libya. the president declined to seek congressional authorization before initiating hostilities. subsequently, he has carried them out for more than three months without seeking or receiving a congressional authorization. this state of affairs is at odds with the constitution. it is at odds with the president's own pronouncements on the war powers during his presidential candidacy. for example, in december 2007, he responded to a question by saying, "the president does not
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have power under the constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." before our discussion turns to constitutional and legal issues, i believe it is important to make a more fundamental point. even if one believes the president some how had the legal authority to initiate and continue u.s. military operations in libya, it does not mean that going to war without congress was either wise or helpful to the operation. the vast majority of members of congress, constitutional scholars, and military authorities would endorse the view that presidents should seek congressional authorization for war when circumstances allow. there is a near uniformity of opinion that the chances of success in a war are enhanced by
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the unity, clarity of mission, and constitutional certainty that such an authorization and debate provide. there was no good reason why president obama should have failed to seek congressional authorization to go to war in libya. a few excuses have an offer, ranging from an impending congressional recess to the authority provided by a u.n. security council resolution. these excuses are not justified. 12 days before the united states launched hostilities, i called for the president to seek a declaration of war before taking military action. the arab league resolution, which is cited as a key event in calculations on the war, was passed a full week before we started launching missiles. there was time to seek congressional approval, and congress would have debated a war resolution if the president had presented one.
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this debate would not have been easy, but presidents should not be able to avoid constitutional responsibilities merely because engaging the people's representatives is inconvenient. if the outcome is in doubt, it is all the more reason why a president should seek the debate. if he does not, he is taking the extraordinary position that his plans for war are too important to be upset by a disapproving vote in congress. the founders believed that presidents alone shall not be trusted with war-making authority. and they constructed checks against executive unilateralism. james madison, in 1797, wrote a letter to thomas jefferson and said "the constitution supposes, like the history of all governments demonstrate, that the executive is the branch of power most interested in war and
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most prone to it. it is, accordingly, with studied care vested the question of war in the legislature." there are circumstances under which the president might be justified in deploying military force without congressional authorization. as senator webeb has pointed ou, none of the reasons apply to the libyan case. our country was not attacked or threatened with an attack. we were not obligated under a treaty to defend the libyan people. we were not rescuing americans or launching a one-time punitive retaliation. nor do the operations require surprise that would have made a public debate impractical. in this case, president obama made a deliberate decision not to seek a congressional authorization of his action, either before it commenced or during the last three months.
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this was a fundamental failure of leadership that placed expedience above constitutional responsibility. some will say that president obama is not the first president to employ american forces overseas in a controversial circumstances without a congressional authorization. to say that presidents have exceeded their constitutional authority before is no comfort. moreover, a highly dubious comments from the obama administration for not needing congressional approval break new ground in justifying a unilateral presidential decision to use force. the approval of even more war- making authority in the hands of the executive is not in our country's best interest, especially at a time when our nation is deeply in debt and our military is heavily committed overseas. at the outset of this conflict, the president asserted that u.s. military operations in libya would be "ltd. in their nature,
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duration, and scope -- limited in their nature, duration, and." of the concerted that they did not require adult dog -- a declaration of war. three months later, these assurances ring hollow. activities have expanded to an all but declared campaign to drive gaddafi from power. the administration is unable to specify any applicable limits to the duration of the operations. and the scope has grown from efforts to protect civilians under imminent threat to obliterating libya's oppose the military arsenal, command and control structure, and leadership apparatus. most recently, the administration looked to avoid these obligations under the war powers resolution by making the incredible assertion that u.s. operations in libya do not constitute hostilities. even some prominent supporters of the war have refused to
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accept this claim. the administration's own description of the operations in libya underscore the fallacy of this position the u.s. warplanes have reportedly struck libya air defenses some 60 times since nato assumed the lead role in the libya campaign. predator drones have reportedly fired missiles on some 30 occasions. most significantly, the broader range of air strikes being carried out by other nato forces depend on the essential support functions provided by the united states. the war powers resolution required the president to terminate the introduction of u.s. forces into hostilities in libya on may 20, 60 days after he notify congress of the commencement of the operation. the administration declined to offer any explanation of its view that u.s. forces were not engaged in hostilities in libya until nearly a month later, on
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june 15. even at that time, the administration's explanation was limited to four sentences. and it was a 32-page report on the libyan operations. the administration analysis focuses on the question of whether u.s. casualties are likely to occur. thereby minimizing other considerations relevant to the use of force. but this definition of hostilities that have a significant scope to conduct warfare from remote means, such as missiles and drones. it would deny congress a say in other questions of located in decisions to go to war, including the impact on u.s. strategic interests on our relations with other countries, and on our abilities to meet competing national security priorities. the administration's report also implied that because allied nations are flying most of the missions over libya, the united states operations are not significant enough to require
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congressional authorization. this characterization underplays the centrality of u.s. contributions to the nato operations in libya. we are contributing 70% of the coalition's intelligence capabilities and a majority of its refueling assets. the fact that we're leaving most of the shooting to other countries does not mean the united states is not involved in acts of war. if the u.s. encountered persons performing similiar activities in support of al qaeda or taliban operations, we certainly would deem them to be participating in hostilities against us. moreover, the language of the war powers resolution clearly encompasses the kinds of operations u.s. military forces are performing in support of other nato countries. these concerns are compounded by indications of the administration's legal decision being a result of the decision
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process. in press reports, the president made this decision without the department of justice having the opportunity to develop a unified legal opinion. the administration has refused our request to make witnesses from the department of defense and justice available for today's hearing, and that is regrettable. finally, one would expect the administration to be fully forthcoming on consultations about libya to compensate, in some measure, for the lack of congressional authorization for the war. although consultations are no substitute for formal authorization. they serve a vital purpose and unify a being -- unifying the government and providing congress with a basis for decision making on the war. for the most part, for example, in the clinton administration and president clinton himself consulted with congress during the u.s. intervention in the
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balkans. in sharp contrast, the obama administration's efforts to control the congress have been perfunctory, and complete, and dismissive of reasonable requests. this committee alone has experienced at least three occasions when briefings or canceled or relevant witnesses were denied without explanation. it was pointed out that very basic questions about the operation have gone unanswered. the deputy secretary of state declined to address certain questions on the basis they could only be answered by the military, and yet the administration has refused to provide the committee with defense department witnesses. it is inexplicable behavior that contributes to the damage that the libyan president might create in the future. i do not doubt that president obama elected to launch this war because of the altruistic impulse is, but that does not make the united states intervention in libya any less of a war of election.
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american pilots are flying in minority of the missions within the coalition, which justifies the contingent we're not engaged in hostilities, especially since u.s. participation enables most of the operations under way. the president does not have the authority to substitute his judgment for constitutional process when there is no emergency that threatens the united states and our vital interests. the world is full of examples of local and reasonable violence to which the united states military could be applied for some altruistic purpose. under the constitution, the congress is vested with the authority to determine which, if any, of the circumstances justify the consequences of american military intervention. i thank the chairman for the opportunity to make this statement. >> so there you have it, sir.
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the stage is set. two differing views, reflecting over 50 years of service on this committee. and we're still not sure what the answer is. so your task this morning is an interesting one, and i think we will not only have a good dialogue, but maybe it will be fun. have added. you are on. >> thank you, mr. chairman, senator lugar, and members of the committee for this important hearing. it is good to be back before you. like past the legal advisers, i am honored to appear to explain the administration's legal position on the war powers. i have submitted detailed testimony, which you have before you, which reviews the brutality visited by gaddafi on the people of libya and the urgent, but restrained, steps this administration has taken to stop it as part of a supporting role within the nato-led
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security council-authorized civilian protection mission that is limited with respect to design, exposure of u.s. troops, risk of escalation, and choice of military means. today, let me make three points. first, this administration is acting lawfully, consistent with both the letter and spirit of the constitution and the war powers resolution. contrary to what some have climbed, we're not asserting sweeping constitutional power to bypass congress. the president has never claimed the authority to take the nation to war without congressional authorization. he has never claimed authority to violate the war powers resolution or any other statute. he has not claimed the right to violate international law, to use force abroad when doing so would not serve important national interest, or to refuse to consult with congress on important war powers issues. we recognize that congress has powers to regulate and terminate uses of force and that the war powers resolution it plays an
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important role in promoting dialogue. my testimony continues that dialogue, which now includes more than 10 hearings, 30 briefings, and dozens of exchanges with congress on these issues. from the start, we have saw to obey the law a bill would not serve an administration that did not. the president reported to congress consistent with the war powers resolution within 48 hours of commencing operations in libya. he friend our military mission in narrowly, directing, among other things, that no ground troops would lead -- would be deployed. on iger 4, u.s. forces would transition responsibility to nato command, -- on april 4, u.s. forces with transition responsibilities to nato command. this does not constitute a bore, requiring specific congressional approval under the declaration of war clause of the constitution. as my
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mission. apps and express congressional authorization for the resolution tricks the president to remove u.s. armed forces within 60 days from the date that hostilities are situations where imminent involvement in hostilities is clearly indicated. but as everyone recognizes the legal trigger for the automatic pull out clock, hostilities is an ambiguous term of art that is defined nowhere in the statute. the legislative history, which recite makes clear there was no agreed upon view of exactly what
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the term hostilities would encompass. nor has that standard ever been defined by any court or by congress itself. from the start legislators disagreed about the meaning of the term and the scope of the 60 day pull out rule. and whether a particular set of facts constitute hostilities for purposes of the resolution has been determined less by a narrow parsing a dictionary definitions bound by interbranch practice. the members of congress have drafted the war powers resolution understood that this resolution is not like the internal revenue code, written the war powers resolution should not be a mechanical exercise. testimony notes on page 13, the president has constitutional authority -- [no audio] please stand by >> as everyone recognizes, the legal trigger for the automatic pullout , hostities is guou .. -- hooke
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>> various leaders have indicated they do not believe u.s. military operations in libya and not the kind of hostilities' envisioned by the 60-day pullout provision. we believe that you is correct and confirmed by historical practice. the historical practice, which i summarize and my testimony, suggests that when u.s. forces engage in limited military mission that involves limited exposure for u.s. troops few and limited risk of serious escalation and employs a limited military means, we're not in hostilities of the kind of vision by the war to trigger an automatic 60-day pullout. let me say a word about each of these limitations. first, the nature of the mission is unusually limited. but presidential design, u.s. forces are playing a constraint and supporting role in the nato-
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led multinational civilian protection mission charged with enforcing the security council resolution. this circumstance is virtually unique, not found in any of the recent historic situations in which the hostility questions has been debated from the iranian hostages crisis to also the door and others. second, the exposure of our armed forces is limited. from the transition date of march 31 forward, there have been no u.s. casualties, no threat of significant casualties, no active exchanges of fire with hostile sort -- hostile forces, no significant armed confrontation or sustain confrontation of any kind with hostile forces.
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measured casualties, >> in this respect, libya contrasts with other recent cases; lebanon, somalia discussed on page 10 of my testimony where past administrations declined to find hostilities under the war powers resolution even though u.s. armed forces were repeatedly engaged by other side forces and sustained significant casualties. fourth and finally, senators, wd are using limited military means, not the kind of full military engagements, and there i quote from a statement by my
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predecessor, the legal adviser of 1975, in response to a request about the congress about an incident during the ford administration. the violence u.s. armed forces are directly inflicting or facilitating after the handoffi to nato has been modest in terms of frequency, intensity and severity. the air to ground strikes conducted by the u.s. are a far cry from the extentive aerial strike operations led by u.s. armed forces in kosovo in 1999 or the nato operations in the balkans in the 1990s to which the u.s. forces contributed the vast majority of aircraft. u.s.e vast majority of aircraft and air strikes. to be specific, the bulk of u.s. contributions has been provided intelligence capabilities and refueling assets to the nato effort. a very significant majority of the overall sources, the puppies
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and flown by our coalition partners. of the overwhelming majority of strike sorties are being flown by our partners. american strikes have been limited on an as-needed basis to the suppression of enemy air defenses to enforce the no-fly zone and enemy strikes black pepper -- predator unmanned vehicles. by our best estimate, senators, since the handoff to nato, the total number of u.s. munitions dropped in libya has been less than 1% of those dropped in kosovo. we acknowledge that had any of these elements been absent in libya or present to different degrees, you could draw a different legal conclusion. but it was the unusual conflicts of these four limitations and operations ltd. in mission, exposure, and risk of escalation, and limited in choice of military means that
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what the president to -- to conclude that the libya operation did not fall under the automatic 60-day pullout rule. as chairman kerry suggested, we are far from the court case that most members had in mind when we pass the resolution in 1973. there were concerned about no more vietnams. given the limited military means to risk of escalation, exchanges of fire, and u.s. casualties, we do not believe that the 1933 congress intended that this resolution should be construed so rigidly to stop the president from supporting action in nato- led security council authorized operation with international approval at the express request of nato, the arab league, a gulf cooperation council, in libya's on transitional national council for the narrow but urgent purpose of preventing a slaughter of innocent civilians in libya. third and finally, we fully
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recognize reasonable minds look at the resolution differently. it would not be surprised that they have since there inceptions. scholars have spent their entire careers debating these issues. these questions are matters of important public debate. reasonable minds can certainly differ. and with knowledge that there perhaps steps that we could have taken to foster better communication but none of us believe that the best way forward now is for gaddafi to prevail and to resume his attack on his own people. with the u.s. not to drop out of this collective civilian action mission or to sharply curtail its contributions would not only compromise our international relationships and destabilize the region, but would undo nato's progress by permanent gaddafi to return to the brutal attacks on the very civilians whom our intervention has protected. however we may construe the war powers resolution, we can all
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agree, it would only serve gaddafi's interest for the u.s. to withdraw from this nato operation before it is finished. congress provided support from a to -- were congress to have provided the support to the mission, ensuring that it often does not regain the upper hand against the people of libya, so in closing i ask that you take quick and decisive action to approve senate joint resolution 20, the bipartisan resolution introduced by senators kerry, mccain, durbin, and others to provide continued operations in libya, to enforce the purposes of security council resolution 1973 and the aspirations of the libyan people. thank you, senator. i look forward to answering your questions.
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>> to buy. i will reserve my time for such time as i may want to intervene with my questions. i will turn to senator lugar to start. >> one of the reasons why it is important to have this hearing and likewise debate on this issue is that throughout the middle east and throughout the world, there are a number of situations in which the united states and other nations have severe disapproval of the governments of those countries. we work with others in the united nations to attempt to bring about conditions that are better for the people of countries that we believe are under a totalitarian or a very authoritarian misrule.
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in this particular instance, there were other uprisings in t egypt uprisingsunisia which caught the attention of the world. -- in egypt and tunisia. in the case of libya, however, the arab league and the united nations and nato, and what have you, ultimately the united states, made a decision to intervene in a civil war. there was shooting going on in libya. it can very well be that person's organs -- who were innocent not be caught in the crossfire. this is the tragedy of civil wars, i suspect, wherever they may be held on this earth. our decision was to intervene in a civil war, and we're continuing to do that.
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despite the fact, we talked about the end of the muammar gaddafi rule, about the importance of gaddafi leaving the country and even sending out rumors that he may be entertaining such thoughts. my basic question is, if we do not have some ground rules. we have to have a more formal declaration of war. this country could decide to intervene in numerous civil wars. it could decide to affect the governance of peoples all over the world. we feel that is unfair. what is your general comment about this predicament? he may feel very strongly that
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gaddafi world is so egregiously out of line, as opposed to all the other dictators, there's no doubt we need to intervene, to prevent him from shooting at people who may be opposing him, and they may be shooting at him and his forces. what is the ground rules for dealing with civil war all over the earth? >> thank you for that very thoughtful question. you have been one of the most thoughtful defenders of the constitution, and i recognize the difference of view between what i have expressed in what you have expressed is from a good-faith disagreements. i and understand the concern that you have, but throughout the middle east, there is only one situation in which there is a u.n. security council resolution and narrowly drawn, in which nato has agreed to take
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command of the operation, in which the arab league supported the operation, in which four muslim countries were ready to join the countries and had been flying flights, and in which the president was able to structure the mission so there was limited nature so the u.s. would move very quickly into a limited supporting role where there would be no ground troops so that there would be a limited exposure, were the risk of escalation would be low, and were the united states, after the transition, would narrow the means being employed so that only its unique capabilities could be used to prevent gaddafi from using the tools that command and control to kill his own people. so that is a very unusual set of circumstances, and what we're saying is, the president acted
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lawfully. the wisdom in other countries is the subject of substantial discussion. it would be complicated to replicate an unusually narrow set of facts. i think our theory and legal approach has been dramatically misunderstood. there's some suggestion that we are flouting the constitution. in fact, we have made it clear that we're not challenging the constitutionality of the resolution. it fits within a resolution that has been on the books now for almost 40 years and which was designed to play a particular role and will have to be adapted to play that role effectively in this century. >> obviously, i raised the question because i fear that there may be circumstances in which we might be staging, based
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upon the security council or somebody else, to intervene in other situations, like our own war powers, declaration to be clarified before we get into that point. i raise one more point, and this may require more hearings, and that is, although we say that the force that we're offering is limited, and this could include the missiles we fire or a drone strikes, what have you. my guess is that if another country were employing such methods against us, without employing any troops on the ground of the united states or any of the so-called conventional means of war, we would see this as an act that was hostile. it would clearly be hostilities. very clearly, we would say that is grounds for us to be at war with whoever is firing at us in these situations. this is why i think perhaps the administration needs to work with congress to try to think
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through, during this time of the drone warfare or a long-distance warfare, that it is not a question simply of whether american casualties occur or their hostilities on the ground. war in the future may be fought in an entirely different way. perhaps not encompassed by the war powers act, but surely needs to be encompassed by all of this and to be thoughtful about the evolution of these hostilities. >> well, senator, you make two points. i was thinking this morning that the first time i testified before the senate on war powers issues was in january of 1991. as desert shield was about to become desert storm. there was a u.n. security council resolution there. but the question was, did you also need an authorization for use of military force? my position there, which remains the same, is that in that circumstance, despite the fact of the multinational coalition authorized by a security council
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resolution, the proposal was 400,000 u.s. troops and comparable vessels and accompanied forces, which was the number of forces in vietnam at its height. the u.n. security council resolution alone does not absolve the situation of requiring approval. what makes this situation unusual is not the existence of the security council resolution, but the fact that the mission that has been structured under it is so limited with the u.s. playing such a narrow and supporting role and with such limited exposure. we're talking about, as senator kerry said, no casualties, and the threat of casualties, and a significant on engagements. another point that has been made by some about our legal approach is that we're somehow suggesting that drones get a free pass
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under the war powers resolution. that is not at all what we were saying. but you make the key point, when the statute talks about the introduction of u.s. armed forces into hostilities and what you're sending in is an unmanned aerial vehicle high in the sky, it is not clear that that provision was intended to apply to that particular weapon. it does with the question on how to update the war powers resolution for modern conflict. there will be situations of cyber conflict and other kinds of modern technologies coming into play, which senators and members of congress never envisioned by 1973. so it may well be, and i think you make the point well, that there was an effort here in the wake of vietnam to drop a kind of framework statue that would
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allocate authorities, called for reporting, try to promote dialogue -- >> thank you. senator casey. >> thank you. i wanted to pursue some of the same line of questioning, and i appreciate the fact that this is difficult as a matter of constitutional law, but also difficult as a matter of policy and perception. i hear a lot from people in pennsylvania that have real concerns about this policy, not only on some of the constitutional debates we're having but just in terms of the clear impression that has been
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created that we are engaged in hostilities of one kind or another. it's very difficult for people to separate from that perception. there are reports, we know, at least according to the "new york times," that since this handoff to place, that u.s. warplanes have struck, according to this one report, 60 libyan targets, and at the same time, unmanned drones, according to this report, fired at libyan forces roughly 30 times. in the context of that reporting, i would ask you about this a broader question, i guess, are this more poignant question. as it relates to the administration's justification of drone attacks -- on drone
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attacks as so-called non- hostile operations. how do you get their just as a matter of law? >> thank you, senator. i appreciate again the thoughtfulness of the question, which i think is a very good one. in the early days of the libyan action, as secretary gates described, the goal was to create an no-fly zone. to prevent gaddafi from attacking his own people. as we point out, footnote 5 of my testimony, gaddafi appears to have rules of engagement call for indiscriminate attacks on his own people. no mercy rules, rape as a weapon of war. these have led to but the commission of inquiry and an arrest warrant against him yesterday at the international criminal court. the question of what kind of military mission to structure to
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respond, and the core of it was, first, the establishment of the no-fly zone. second, for the u.s. to shift from a lead role into a support role. and the bulk of the contributions, as i have suggested, have been primarily intelligence, refueling, search and rescue, flyovers and the like, with no fire at all. but there are two elements that have been added to the picture. one is mirrored defenses. it gaddafi's command and control existed and if initial efforts have been made to destroy that command and control, and he shifts those operations to other command and control, he can replicate his capacity to kill civilians such a move from one and then stop is simply allowing gaddafi in a game to return to the very acts
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that led to the intervention in the first place. that has been the basis of the notion that american strikes should be authorized on an as- needed basis to suppress enemy air defenses to enforce the no- fly zone. and then, the unique capabilities that american military forces have been requested by the nato allies to hit particular discrete targets to support the civilian protection mission, particularly command and control or other kinds of anti-aircraft, which are difficult to reach by other means. let me emphasize again some numbers that i gave earlier, because i think they are important. in the overall number of sorties that have been flown, the united states is flying a quarter. but in the strike sorties that are being flown, the united states is a flying only 10%.
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the predator strikes, as you suggested, are a relatively small number, and the total number of munitions dropped by either manned or predators at this moment, according to our best information, it is less than 1% of the amount that was dropped in kosovo, in which there was a substantial debate over the application of the war powers resolution. so you came back to the question -- are we engaged in hostilities? as i said, this is not a parsing of dictionary terms. it is a statutory provision. congress passes provisions of the time that have terms of our like, emergency, the word treaty in want statute was recently read to me in an executive agreement. i am sure the foreign relations committee will have questions about that. the words chosen here was hostilities. over time, hostilities has been defined through executive and
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congressional practice to encompass some level of strikes were the major focus, as i have suggested, being on whether the mission is limited, whether the risk of escalation is limited, whether the exposure is limited, and whether the choice of military means is narrowly constrained. it is within that set of four limitations that apply here that it was our conclusion that we are well within the scope of the kinds of activity that, in the past, have not been deemed to be hostilities for the purposes of the war powers resolution. >> i will ask some other questions by the way of supplemental written questions. i would ask you, as well, i connection with this, are you concerned about the press in here as a relates to executive power? you have any concerns about that? and you think that this is breaking new ground? >> they're two different
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questions. of course, i am concerned about the precedent. i spent much of my academic career writing about the balance of powers between congress and the executive and foreign affairs. in 1990, my first book on the subject, i pointed out that the basic structural flaw of the war powers resolution, which has a number of virtues. one of the virtues is that it promotes dialogue through a blunt time limit. but one of its structural flaws is that it requires an automatic pullout without congress ever having been made a specific judgment about whether or not they approve or disapprove of an action. and that could lead, in certain circumstances, to atrocities resuming because of the lack of a clear congressional stance. the goal in the vietnam era was to try to find a single congressional position that
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could be applied. i agree that there have been cases which the executive branch has overreached. i have written about this in my academic work for many years. which is precisely why the precedent here, we think, has been narrowly drawn. as i said, we're not challenging the constitutionality of the resolution, which a number of administrations have. we're not saying the war powers resolution should be scrapped, whether it is constitutional or not. what we're simply saying is that when the mission is limited, the risk of escalation is limited, the threat to troops is limited, no ground troops. and win at the tools being used are extremely limited, that that does not trigger the 60-day clock. and in doing so, we look to executive and congressional precedents dating back to 1975. the persian gulf tanker controversy, lebanon, somalia,
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grenada, to see where it fit. and when you have a situation in which something like kosovo or bosnia, campaigned we are talking here about 80 casualty, little or no risk of escalation and 1% of munitions, that strikes us as a difference that ought to be reflected. the rationale i am presenting today, if any of those elements are not present, none of those at necessarily apply -- you have to redo the analysis. >> thank you, mr. chairman. i have heard many cases where you have tried to justify the ends or the means for the end -- and eddie have talked about libya and muammar gaddafi in
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your handling of this. those are two very, very separate issues. people have very differing opinions about what is happening in libya but still have strong concerns about the way the administration has handled the process itself. i do not think it is helpful to meld the two together and i think of waters down the issue at hand. i find a humorous, sitting here on the foreign relations committee, the most deliberative body in the world, some say. basically you guys have not provided witnesses from the department of justice or the pentagon. we seem to take that as a humorous thing. the administration has basically said there's no reason for us to get any better resolution from congress, and yet the senate today in this urge to be relevant is rushing to give the
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administration irresolution even though it is basically saying in this case that the senate is irrelevant. i want to ask this one question -- now you have taken this argument and seen the response you got from both sides of the aisle, are you still glad that you have travelled this route as it relates to the argument you have made about the war powers act? >> senator, i believe this argument. i think it is correct. i would not be here if i did not believe it. >> i did not ask that. are you glad that you created an issue where no issue had to exist by taking this narrowly defined route and sticking a stick in the eye of congress? is that something you are glad you have done? >> senator, that was not our intent. you felt they stick with stock, that's not our goal. you have said a number of things
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i thought i should include in my answer. one, the war powers resolution is not a mechanical device. it has to be construed in light of the facts of the time. otherwise, the 1973 congress would be making decisions instead of the congress of 2011. it has to take account of the circumstance. with regard to witnesses, i'm the legal adviser of the state department. the footnote in one of my testimony reviews, times the legal of visor's have appeared before this committee and others -- this is my committee of jurisdiction. you voted my confirmation. so i am here for the conversation. it was our position from the beginning that we were acting consistently with the zero or powers resolution, but we would welcome support because as senator lugar said, it would be -- a president always value a
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bipartisan support for this kind of effort or mission. finally, you asked whether we have made errors. i think this controversy has probably not played out exactly as some would have expected. i'm sure there are many places where someone have urged, and i would have been among them, coming up with -- coming up earlier for more briefings and to lay out these legal positions. for my part of that, i take responsibility. but i do believe that the end of the day, the last thing we're saying, the thing we're not saying, is that the senate is irrelevant. >> we are making ourselves irrelevant. let me do this. this is a long answer. i want to give the respect of
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answering. i would like to have a couple of extra minutes -- if you want to say anymore regarding my opening comments -- >> however the legal question is addressed, there is a fundamental question of what to do about the civilians in libya. that is a decision on when it should the senate can make a decision this afternoon. >> i do not think making decisions are any different from what came out. we are rushing to make ourselves irrelevant by passing something al that basically says -- you know what it says. the chairman mention that since no american is being shot, there are no hostilities. by that reasoning, we could drop a nuclear bomb on tripoli and we would not be involved in hostilities. that goes to a preposterous argument being made. one of the issues of precedents
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you are setting is that predators now, the president of the united states, and the justice department of this administration has spent lots of time trying to deal with people's rights as it relates to terrorism and that kind of thing. yet basically, what you're doing by arguing this narrow case, as saying any president of the nine states can order predators strikes in any country and that's not hostilities. we know what predators do. i think you know what they do. lots of times human beings are not alive after they finished their work. arguing're doing is that president can order predator strikes in any place in the world by virtue of this narrow argument yet taken. that is not hostilities and connors plays no role.
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>> that is not what i am arguing. the obviously, s credit -- of a predator strikes were at a particular level or floor carpet bombing using predators, that would create a dramatically different situation. but the scenario i have described to senator casey is a very different. within the constraints of this particular mission, without ground troops, the predators are playing a particular role with regard to the elimination of certain kinds of assets of muammar gaddafi being used to kill his own civilians. even the numbers senator casey mentioned are not close to the kind of level we would consider to be ones that would trigger the pullout provision. the important thing and the
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thing that has been asked is are we presenting a limited position? yes. because all four limitations are what bring it within a line of the statute. we do not say any element of could be expanded out of shape and require reexamination of the war powers resolution. i gave the example of the un security council designation, desert storm, that required approval because of the scale of the operation. >> i think the president has established a precedent by taking this argument that any president can use predators in any country they wish because that is limited hostilities without congress being involved. i'm probably going to come to a close quicker than i won because of the time. we do have limited time flying
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over ltd. -- over libyan airspace, do not? >> yes. >> we do know there are numbers of types of weapons that they have that could take down our aircraft that are not necessarily lead fixed positions, correct? >> that is correct. >> to say our men and women in uniform are not in a position to encounter hostilities is pretty incredible. you cite that hostilities has never been defined. i read the house conference which basically reported out the war powers act. they tried to make it a lesser level. they started out with armed conflict. they started out with hostilities and did so in such a matter to talk about the kinds of positions that exist on the ground.
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when you say these are not hostilities, that is patently not the intent of congress when they pass the war powers act. you introduce a mathematical formula. i'm sure future presidents will use a mathematical formula if we are only doing x% of the bombing than we are not involved in hostilities. but i find that not in any way to jive with what the house sent out in its reporting language. i know my time is up and the chairman is getting impatient. i did not support your nomination. i thought you are right there -- a very intelligent person, very well learned. but i felt you had the likelihood to subject u.s. law or to cause it to be lesser
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important than international law. while i made no statement to that effect publicly, i told you that privately when we met in our office. that is exactly what you have done. you have basically said the united nations has authorized this and there is no need for congress to act. we're going to narrowly defined hostilities. i would guess at night, however people of your categories get high-five's, you're talking to other academics about this cute argument that has been utilized. i think you have undermined the incredible -- the integrity of this the destruction and the integrity of the war powers act. by taking this very narrow approach, you did great disservice to our country. i do hope as some point we will look at the war powers act in light of new technology and in light of new conflicts and
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define it in a way that someone using these narrow and defeat arguments does not have the ability to work from congress. >> i was not growing impatient. i think it is time -- is important to give you time to these conversations. i value our relationship lot. i do have to tell you based on what you just said that your facts are incorrect. your basic facts on which you are basing your judgment is incorrect. let me tell you why. first of all, the president of the united states accepts the constitutionality of the war powers act and sought to live by it. no president has done that yet. >> i did not argue that. >> you come to the next point.
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having done that, the president sent us a letter before the expiration of the time. in the letter, and i'm going to put that in the record, he says the dear mr. speaker, and the president pro tem and the senate, march 21st, reported to congress that the united states, pursuant to requests from the arab league and authorization by the united nations security council to prevent a humanitarian crisis in libya. i could read the whole thing, but he says, pursuant to our ongoing consultations, i wish to express my support for the bipartisan resolution drafted by senators kerry, mccain, feinstein, levin and lieberman, which confirms the congress supports the mission in libya and both branches are united in their support of the libyan people. he asked us to do that before
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the expiration of the 60 days. but we did not do it. do not blame the president. the congress of the united states did not do it. let me tell you why, bluntly. both leaders in both houses were unwilling to do it. let's be honest about this. >> i am being honest about this. i have the ability to express my opinion just like you did. and to use the facts just like you do. i do not want to get into a debate about this right now. >> you are not letting me finish my point. you are saying the president violated the process and did not come to the congress. he did come to the congress. he sent us a letter due to authorization and we did not do it. that is the simple fact here. moreover, there is a constitutional question here because in paragraph b of the war powers act, it says the president shall terminate any --
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will submit it unless the congress has declared war or has enacted a specific authorization within the 60-day time frame. if congress does not act, congress can in effect by its lack of action challenge the constitutional right to do something. that is a constitutional standoff. any senator could have gone to the floor of the senate with a resolution during those 60 days. no senator chose to do so. all i am saying is i'm not going to sit here and let everybody throw a dart at the white house saying the president violated this or that. secondly, sent us a letter before the expiration of the time asking us to pass the authorization. third, i will say this as a chairman, nobody wanted to do
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it. so, here we are. the relevant question is -- i agree. there are some serious constitutional questions about predators, how did they fit, and i think the legal adviser has accepted that. we need to exercise our responsibility to modernize this. but there fact that hostilities are taking place, and they are, does not mean the united states armed forces have been introduced into those hostilities of their not being shot at or not at risk of being shot at. if there is no risk of escalation or of the mission is narrowly defined. i know none of us want to get trapped in the legalese here. we want to try to do this in the right way, but it is wrong to suggest that somehow the president went outside the constitutional process here when in fact, congress, us, has done
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nothing in the 60 days to declare war or not. >> i would just respond that i think the central element of my argument to mr. koh, , i respect his intellect but i don't respect his judgment on this case. the focus of my argument was hostilities. by a nearly defining that are being cute by where you say i support the constitutionality of the war powers act but on the other hand, since we are not really involved in hostilities, we don't really need to deal with congress. that's the part. that just happened on the 15th. i don't think anybody in this body had any idea that the president would take such a narrow, narrow interpretation of hostilities. i don't think anybody knew that. i think the president wishes he
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had handled this differently because what has happened is, by being cute, they have introduced a whole other debate that should not be taking place. my guess is they might have gotten overwhelming support for a limited operation whether i support it or not. what they have done by trying to have it both ways, which is what they did with the june 15th letter, is interject a debate that has to do with credibility, integrity, and to me, is a great disservice to this country. i stand by what i just said. it is factual. i would be glad to debate this all along. >> hopefully we don't have to do that. without we can do it debating it all along. but i do think it is important. i did hear you say are rushing to get a resolution and i heard you say the senate is irrelevant. i think when you measure those things against the reality of
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what the president asked us to do, any of this issue is because the senate has been having a very difficult time getting anything done lately. >> thank you, mr. chairman. i would like to express my appreciation for senator cor ker showing me how to get seven -- had it 25 minutes out of seven minutes. in reaction to the exchange that just took place, one of them is whether or not the president's consulted with certain people in the senate and whether or not there was a request for us to validate the aged -- the actions, the issue before us now is the administration is coming to us nothing the war powers act is not apply in this situation because of their very narrow
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and, in my opinion, contorted definition of hostilities. that is the issue before us, about the other one. i would just like to say i think the most unusual part of this decision was not simply the issue my colleague raised, which was a very important issue in terms of indirect fire, but the use by a president of a very vague standard that he can unilaterally inject military force into situations around the world based on a vague standard of humanitarian assistance. we have not seen that before. that's something that demands a certain amount of accountability. this was the major reason i started to become concerned with the way this operation was unfolding. but i will say we have an operation that goes on for
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months, cost billions of dollars, where the united states is providing two-thirds of the troops, even under the nato figleaf or dropping bombs that are killing people or paying your troops offshore combat pay, and there is the prospect of escalation -- something i have been trying to get a clear answer from this administration for several weeks now -- that is the possibility of a ground presence in some form or another wednesday regime expires. i would say that is hostilities. there was a debate inside the administration on this definition, was there not? >> the president took the position -- >> but there was a debate as to the issue of whether this constituted hostilities. we read about in the paper. >> just yes --
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>> just yes or no. >> i cannot comment on illegal -- >> there is plenty of reporting that there was a good bit of debate as to whether this was the right way to go. what do you make of the fact military people offshore are receiving combat pay? >> there also suit -- there are also receiving it in greece, the negroes, saudi arabia, turkey and other countries and the same provision. it doesn't mention hostilities and i don't think anybody believes we are in a war powers situation in this country. -- in those countries. these are hard questions. >> i don't mean to interrupt you, but i've really only have about seven minutes here. >> demand danger pay is given on a different basis than
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hostilities. -- imminent danger pay is given on a different basis than hostilities. at the end of the day, this is a question of statutory interpretation. it is not the administration saying drones are not covered. the question is whether when you have an unmanned aerial vehicle, that's the introduction of u.s. armed forces in a statute drafted by congress. if that language along or works -- >> just in general, if you are engaged in a vietnam-type military operation, which i was, you have certain support elements providing in direct assistance to the people putting bullets on the battlefield. i really don't see any distinction here because in the
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vietnam environment, i was a journalist in afghanistan, i was a journalist in beirut. not everybody is a trigger- polar. the definition between aircraft that are revealing the bombers or conducting intelligence activities or surveillance is an artificial distinction. >> nobody is saying something replicating vietnam at this moment would not be -- >> i'm not talking about vietnam. i'm talking about afghanistan or beirut -- same thing. >> i think you make the most important point of all -- these are points of judgment. in your role in the navy, you made that judgment. it is not a mechanical formula. whether the mission has been shaped this particular way in this particular setting with this particular risk of escalation exposure, which are
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very low -- >> you repeated that language several times today. i understand the language. let me ask another question because it's a very important question. we still have not severed relations with muammar gaddafi's government, have we? if we have, it's the last week or so. technically, we still recognize this government. would that be a correct interpretation? >> we are trying it to all the responsible -- >> give me a legal answer. we have not severed relations. is that correct? >> the reason for that -- >> it their relations -- >> they have been suspended but they're not severed. what's the constitutional limitation on the assassination of the head of state?
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>> the assassination of head of state is restricted by executive order. that executive order is enforced. the admiral has made clear that despite press reports, he has not expressed a view -- airline >> the executive order would say -- there is a preclusion against the assassination of the head of state? >> the wording of it is an unlawful act. the interpretation would depend on the facts of the situation. the reason for the lack of severing is so that the government can remain an spot -- and remain responsible under international law for the things gaddafi is doing using the forces of the government. >> i understand that. you cannot distinguish that on that point any more than it is relevant in -- relevant to distinguish out hostilities base of these other realities.
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people will have differences of opinion on that. there is a lot of talk about the way in which muammar gaddafi should exit. nobody appear once in to remain. but the moral standard we sat on issues like this is the same one we should expect. it is a point we need to be thinking about. >> it's a good point. i'm glad you raised it. i don't want you to feel cut off. the purpose of having a limitation is that everybody is here. if there are four or five of us, i have no problem letting senators go longer. >> i feel well taken care of today. >> thank you for joining us today. i want to start by thanking the members are of -- our armed
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forces, those who sacrificed so much to themselves in harm's way. the discussion today has a number of questions important to national security. especially when we consider there are lots of places in the world where our national security is placed in jeopardy by some of the things people are doing and people are saying. i think it is appropriately have this discussion because we want to make sure when we deploy these people, these brave young men and women who serve us so well that we are doing so in a way that maximizes their utility in protecting the americans at home. how do you define the terms hostilities as used in the war
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powers resolution? >> the effort to define that, and this is described in the descriptions of the conversations of the sponsors was to leave the matter for subsequent executive practice. senator corker mentioned the term armed conflict. there was an irony -- armed conflict is a term of international law. they did not import that into the statutes precisely so international law would not be the controlling factor. the net result was in late 1975, under the ford administration, during that administration, congress in the first footnote of my testimony invited the legal adviser to
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come forward with a definition of hostilities from the executive branch and apply the judgments we are describing here. in my testimony, i described the response given by mr. li and his co-author in which they essentially set forth a standard. this is on page 6 of the testimony. they said the executive branch understands in which armed forces are engaged in exchanges of fire with opposing units of hostile forces. they said the term should not include situations which were once in which the nature of the mission is limited, where the exposure of forces is limited, the risk of escalation is limited or when they are conducting something less than
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full military counters as opposed to surgical military activities. >> where is that from? >> page 6 of my testimony in the first footnote, the letter from the state department legal adviser. with regard to the scientific affairs ought international relations. congress acknowledged it did not know what hostilities meant from the legislative history alone, so they invited the executive branch to give clarification. >> i do not disagree with the broader definition, but like so many definitions, that one has been severely undermined. doesn't it strike you as something a little bit


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